Mangat Ram (Since Deceased) ... vs Ramphal Rathi
2010 Latest Caselaw 5302 Del

R-118
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment Reserved on: 19.11.2010
%                              Judgment Delivered on: 23.11.2010

+                          R.S.A. No.185/2002

MANGAT RAM (since deceased)
Through L.Rs.                          ...........Appellant
                 Through: Mr.Abhik Kumar,
                            Mr.Siddhartha Shankar &
                            Mr.Rajesh Kr.Naidu, Advocates.

                     Versus

RAMPHAL RATHI                                       ..........Respondent
                           Through:      Mr.M.R.Chawla & Mr.N.Vinoba
                                         Bhoopathy, Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

       1. Whether the Reporters of local papers may be allowed to
          see the judgment?

       2. To be referred to the Reporter or not?                      Yes

       3. Whether the judgment should be reported in the Digest?
                                                            Yes

INDERMEET KAUR, J.

1. This appeal has been directed against the impugned

judgment and decree dated 30.10.2002 which has endorsed the

finding of the trial judge dated 5.3.1999 whereby the suit of the

plaintiff Ram Phal Rathi for permanent injunction has been decreed

in his favour.

2. Briefly stated the factual matrix of the case is as follows:

(i) Plaintiff had purchased land comprising of 16 bighas 17

biswas in village Tigri Kalan, Delhi-41 in Khasra No.25/8, 9,

10, 57/14/1, 78/18/2 & 717 vide a registered sale deed

Ex.PW1/2 dated 4.4.1996 from Chand Singh.

(ii) The land was mutated in the name of plaintiff on 7.6.1996.

Plaintiff is stated to be in actual physical possession of the

suit property.

(iii) Plaintiff had constructed boundary wall along with one tin

shed room in land measuring 18 biswas comprised in Khasra

No.57/14/1 in September, 1996.

(iv) On 28.10.1996, the defendant and his associates tried to take

forcible possession of the suit property; on the intervention of

the neigbours the defendant ran away from the site.

(v) On 31.10.96 the defendant again visited the site along with

certain anti-social elements to take forcible possession of the

suit property.

(vi) Defendant had filed a petition under Section 85 of the Delhi

Land Reforms Act, 1954 (hereinafter referred to as "the DLR

Act) for declaration of his bhumidari rights which petition

was dismissed.

(vii) By way of the present suit plaintiff has claimed a decree of

permanent injunction restraining the defendant from

dispossessing the plaintiff or interfering with his peaceful

possession of the suit property.

(viii) Defendant filed written statement. His preliminary objection

was that the suit is barred under provisions of Section 53 of

the Transfer of Property Act. It was stated that the

defendant was in actual physical possession of the said 18

biswas of land comprised in Khasra No.57/14/1; plaintiff has

no connection with the same. Contention of the defendant

was that he had purchased land comprised in Khasra No.997

measuring 1 bigha 14 biswas on 23.5.1972 vide a registered

sale deed Ex.DW1/X from Sukh Devi who is the mother of

Chand Singh. Defendant had in part performance of the

contract taken possession of the land in the said khasra.

Thereafter Consolidation of Holding proceedings took place

in the Revenue Estate in the year 1975-76; in lieu of the

possessory right of the defendant in Khasra no.997 he was

allotted and given possession of 18 biswas of land in Khasra

No.57/14/1. Since then he is in possession of the suit

property to the exclusion of others. Plaintiff has no right in

the suit property.

(ix) Trial judge had framed seven issues; they inter alia read as

follows:

i) Whether suit of the plaintiff is barred u/s 53-A of Transfer of Property Act? OPD

ii) Whether suit of the plaintiff is bad for non-joinder of necessary parties? OPD

iii) Whether plaintiff has no locus standi to file the present suit? OPD

iv) Whether suit of the plaintiff as framed is not maintainable? OPD

v) Whether there is no cause of action for filing the present suit? OPD

vi) Whether plaintiff is entitled to permanent injunction prayed for? OPP

vii) Relief.

(x) Trial judge on the basis of oral and documentary evidence

had returned a finding that the plaintiff had vide registered

sale deed dated 4.4.1996 Ex.PW1/2 and the subsequent

mutation effected on 7.6.1996 proved his ownership and title

to the suit property. Version of PW1 that he had constructed

boundary wall with a tin shed room in this land was accepted.

The testimony of PW2 the Patwari was also considered.

Defence of the defendant that he is in possession of this

property since Consolidation of Holding proceedings in

August, 1976 in lieu of the property which had been held by

him in Khasra no.997 was reflected. The further documents

i.e. Ex.DW1/3 to Ex.DW1/7 which were khasra girdawaris

ranging from the year 1983 to 1986 were also considered.

Court held that admittedly as on date it was the plaintiff

whose name was recorded in the mutation/revenue records;

weighing the balance of evidence it tilted in favour of the

plaintiff; plaintiff was held entitled to a decree of permanent

injunction as he had established his possession in the suit

property.

(xi) This finding of the trial judge was endorsed by the first

appellate court. Vide the impugned judgment dated

30.10.2002, the registered sale deed of the defendant

Ex.DW1/X was rejected on the ground that this sale deed had

been executed by Sukh Devi on behalf of herself as also her

three minor children and the requisite permission of the

District Judge not having been obtained under Section 8 of

Hindu Minority & Guardianship Act, 1956 hereinafter

referred to as „HMG Act‟); this sale deed was invalid. The

appeal of the appellant/defendant Mangat Ram was

dismissed.

3. This is the second appellate court.

4. On behalf of the appellant it has been urged that appellant

has been non-suited in the impugned judgment and his registered

sale deed Ex.DW1/X has been declared invalid only on the ground

that the provisions of Section 8 of HMG Act have not been adhered

to. It is pointed out that this provision could not have been

resorted to by the first appellate court as non compliance of the

said provision would not make the sale deed void abnitio, at best it

would become voidable and that also only at the option of the

minor which in this case was not so. The rejection of the sale deed

is an illegality. It is pointed out that admittedly a registered sale

deed Ex.DW1/X had been executed in favour of the defendant on

23.5.1972 for land comprised of 1 bigha and 14 biswas in Khasra

No.997. It is also not disputed that in the Consolidation

Proceedings Ex.DW1/A dated 16.8.1976, 18 biswas of land had

been allotted to the defendant in lieu of the land held by him in

Khasra no.997. All these are admitted facts. The possession of the

defendant in the suit land up to 1986 is evident from the khasra

girdawaris which had been proved before the court as Ex.DW1/3 to

Ex.DW1/8. Attention has been drawn to the provisions of Section

85 of the DLR Act. Ex.DW1/P-1 is the order of the Revenue

Assistant dated 27.3.1985 wherein although his petition had been

dismissed yet it had been affirmed that the petitioner is in

possession over the disputed land although possession without

consent has not been proved. Learned counsel for the appellant

has submitted that vide notification dated 8.11.1989 there was a

change in the DLR Rules as a result of which the columns 4 and 5

in the khasra girdawaris i.e. Form P-4 did not record the name of

the actual possessor of the land; it was only the name of the

bhumidar which was being recorded. This was pursuant to the

amendments to Rule 49 and Rule 63 which has since been struck

down by the Supreme Court in the judgment reported in JT 2000

(6) SC 643 Additional District Magistrate (Rev.) Delhi Admn. etc.

vs. Shri Siri Ram etc. It is pointed out that this was for the

reason that the name of the defendant was not appearing in the

revenue record in this intervening period and the name of

bhumidar i.e. of Chand Singh was appearing. It is further

pointed out that the defendant/appellant had also challenged the

mutation of the land effected in the name of the plaintiff before the

Additional Collector, Rampura whose decision is yet awaited and

this also finds mention in the arguments of the defendant recorded

before the trial judge. Learned counsel for the appellant has

drawn the attention of this court to the order dated 29.7.2003

passed by this court where a Local Commissioner had been

appointed; the report of the Local Commissioner is dated

31.7.2003; it is pointed out that this report is in favour of the

appellant and this also categorically records that the name plate of

the appellant was found affixed on the gate at site; so also were the

visiting cards showing his possession in the suit property. Learned

counsel for the appellant has also drawn attention of this court to

the provisions of Section 21 (3) of the East Punjab Holding

(Consolidation and Prevention of Fragmentation) Act, 1948

(hereinafter referred to as „the said Act‟). It is pointed out that

under this provision of law any person who is aggrieved by the

order of the Consolidation Officer may file an appeal before the

Settlement Officer within one month. In this case, the

Consolidation Proceedings Ex.DW1/A are of the year 1975-76

which have not been challenged; they have since attained a finality.

Attention has also been drawn to Section 44 of the said Act which

bars the jurisdiction of the Civil Court. For all the aforesaid

reasons the impugned judgment is liable to be set aside.

5. Per contra, arguments been countered by the counsel for the

respondent. It is stated that two concurrent findings of fact cannot

be disturbed. The report of the Local Commissioner is only a piece

of evidence against which objections have been filed and which are

pending. They have yet to be adjudicated upon. Attention has

been drawn to the provisions of Order 26 Rule 9 of the Code of

Civil Procedure (hereinafter referred to as „the Code‟); it is

submitted that the report of Local Commissioner cannot per se be

accepted as a gospel truth. Learned counsel for the respondent

has placed reliance upon a judgment reported in AIR 1970 Mysore

314 Rangayya Kanantha and Ors.vs. Govinda Chatra and Ors. to

support this submission as also another judgment of the Supreme

Court reported in (2000) 6 SCC 506 Rajinder & Co. vs. Union of

India & Ors. It is submitted that the report of the Commissioner is

always subject to the rider regarding his tenability. It is pointed

out that defendant has not challenged the sale deed Ex.PW1/2

dated 4.4.1996 executed by Chand Singh in favour of the plaintiff.

The plaintiff had been able to establish both by oral and

documentary evidence that he is in possession of the suit land

entitling him to a decree of permanent injunction.

6. Record has been perused. This is the second appellate court.

On 1.9.2008, after the admission of the appeal the following

substantial question of law were formulated; they inter alia read as

follows:

"(1) Whether the appellant defendant, who is the registered owner of the suit land vide sale deed dated 23.5.1972 vide exhibit DW1/A, could still be injuncted by the learned Trial Court in the present suit filed by the alleged subsequent purchaser of suit land alleging to have purchased the same in the year 1996, after about 24 years of the purchase of the suit land by the defendant appellant?

(2) Whether the respondent plaintiff who has never been and still is not at all in possession of the suit land and was also not in possession thereof even on the date of the institution of the suit before the learned Trial Court, can still be allowed and granted a decree for permanent

injunction thereby restraining the defendant/appellant, his agents, employees, attorneys etc. from dispossessing or interfering in the actual physical possession of the plaintiff respondent over the suit land, by the learned Trial Court?

(3) Whether the appellant defendant who is the recorded occupant of the suit land in the various Khasra Girdawaris filed before the learned Trial Court vide documents exhibit PW1/3 to 7 and who has been shown to be in possession of the suit land, could still be injuncted by the learned Trial Court and the First Appellate court in the false and frivolous suit filed by the respondent plaintiff?

(4) Whether the appellant defendant whose possession was also observed and confirmed by the learned SDM vide Judgment dated 25.4.1988 exhibit DW1/P1 in the proceedings under Section 85 of the Act but however dismissing the above petition on the ground that the appellant had not been able to show his adverse possession over the land in dispute but was in permissible possession thereof, could still be injuncted by the courts below by way of impugned judgment and decree?"

7. It is not disputed that vide registered sale deed dated

23.5.1972 Ex.DW1/X the defendant/appellant Mangat Ram had

purchased 1 bigha 14 biswas of land in Khasra no.997, Tikri Kalan

from Sukh Devi. Sukh Devi is the mother of Chand Singh. It is also

not in dispute that vide Consolidation Proceedings Ex.DW1/A dated

16.8.1976 in this revenue estate, in lieu of the land held by Mangat

Ram in Khasra No.997 (1 bigha 14 biswas), he was allotted 18

biswas of land in khasra no.57/14/1. It is also not disputed that

these Consolidation Proceedings dated 16.8.1976 have since

attained a finality; they were not challenged. Ex.DW1/3 to

Ex.DW1/8 were the khasra girdawaries for the years 1980 to 1986

showing the cultivatory possession of the defendant Mangat Ram in

the suit land i.e. 18 biswas of land comprised in Khasra no.57/14/1,

Tigri Kalan. It is also not in dispute that the defendant Mangat

Ram had filed proceedings under Section 85 of DLR Act to enforce

his rights in the aforesaid land. The judgment of Revenue Assistant

is Ex.DW1/P1 dated 27.3.1985. All the abovesaid submissions

which have been urged before this court today have been recorded

in this order. The contention of the petitioner that he was in

possession of this land without the consent of the respondent was

rejected yet his possession over the said land was otherwise not

disputed. It is also not in dispute that Rules 49, 63, 65 and 67 as

also Form P-4 of the Delhi Land Revenue Rules (notified on

8.11.1989) were held to be ultra vires vide a judgment of a bench

of this Court on 7.1.1995; this had been upheld by the Supreme

Court in the judgment of Additional District Magistrate (Rev.) Delhi

Admn. (supra); under the amended Rules 49 and Rule 63 the name

of a person in possession was not be recorded in Form P-4 even if

he is in possession of the land; only the names of the tenure holder

and the sub tenure holder as prescribed in the khatoni were to be

recorded. These rules were struck down as ultra vires the Statute;

it was held that such a rule would adversely affect the possessory

rights as names of those persons in actual possession of the land

would not be reflected in the annual report which is contrary to the

provisions of the DLR Act.

8. Trial judge in the judgment dated 5.3.1999 had noted this

aforenoteds contention of the learned counsel for the appellant

that the names of the persons who are in possession of the land

was not recorded for the said reason.

9. The plaintiff has relied upon a sale deed Ex.PW1/2 dated

4.4.1996 executed in his favour qua 18 biswas of land in khasra

no.57/14/1, Tigri Kalan. This was executed by Chand Singh in his

favour. Mutation was effected on 7.6.1996. The Supreme Court in

(2004) 12 SCC 58 Suman Verma vs. Union of India & Ors. had

pointed out the distinction between owning of agricultural property

and getting the name entered in revenue records as two different

and distinct things; mutation entries did not confer right or title to

the property. The mutation proceedings in the instant case are

also under challenge before the Additional Collector which are yet

pending. This is also an admitted position.

10. Impugned judgment has illegally ignored the sale deed

Ex.DW1/X dated 23.5.1972; only reason given is that the

permission of the District Judge not having been obtained this

document cannot be looked into.

11. Section 8 of the HMG Act deals with the powers of a natural

guardian. Section 8 (3) reads as under:

8. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2) is voidable at the instance of the minor or by any person claiming under him.

12. A transaction of immovable property entered into by a

natural guardian on behalf of the minor is voidable only at the

instance of minor or any person claiming under him. No such

procedure had been resorted to by the minor; the impugned

judgment has illegally and arbitrarily ignored this sale deed. The

impugned judgment has cursorily dealt with the appeal. It has not

gone into the merits at all. It has failed to adjudicate or express its

opinion or mind on the other documentary evidence adduced by the

respective parties.

13. The documents relied upon by the defendant/appellant

clearly established that in 1972 he had entered into a sale

transaction for 1 bigha and 14 biswas of land in Khasra no.997,

Tigri Kalan; in lieu thereof on 16.8.1976 vide Consolidation

Proceedings Ex.DW1/A he had been allotted 18 biswas of land in

Khasra no.57/14/1 which was the land belonging to Sukh Devi. In

these Consolidation Proceedings this land had been allotted to the

appellant in lieu of the sale deed Ex.DW1/X which was entered into

with none other than Sukh Devi who is the mother of Chand Singh.

The Consolidation Proceedings Ex.DW1/A had also not been

challenged under Section 21 of the said Act. The khasra girdawaris

for the subsequent years i.e. upto the year 1986 Ex.DW1/3 to

Ex.DW1/8 established the cultivatory possession of the

defendant/appellant over the suit land. It is also not in dispute that

pursuant to the new Rules incorporated in the Statue i.e. DLR Act

i.e. Rules No.49, 63, 65 and 67 and Form P-4 the name of the

actual possessor of the suit land was not to be reflected in the

annual report; the names of the tenure holder and the sub tenure

holder alone were to be reflected in the annual report. These Rules

were struck down in 1995 by the High Court and upheld by the

Supreme Court in 2000. It was for the reason that the name of the

bhumidar/tenure holder Chand Singh continued to find mention in

the subsequent years. It is also not in dispute that pursuant to the

mutation proceedings dated 7.6.1996 effected in favour of the

plaintiff, challenge was led to them before the Collector which

proceedings are pending adjudication. This find clear mention in

the judgment of the trial judge. Possession of the defendant had

stood established.

14. Local commissioner had been appointed in the proceedings

before this court on 29.7.2003; his report dated 31.7.2003 has

been perused; he had gone to the site and inspected the suit

property in presence of both the parties. He had taken

photographs of the site; his report is to the effect that the name of

the appellant finds mention on the name board and the gate; name

of the plaintiff finds freshly painted; objections to the said report

have also been perused. They have not challenged the report on

any other ground except that it has been filed after eight days and

the factual submission have been wrongly reported.

15. Order 26 Rule 9 of the Code deals with the commissions for

legal investigation. The commissioner has been appointed only to

investigate the matter. Admittedly, his report is only a piece of

evidence had to be weighed and examined by the Courts. It is not

in dispute that the second appeal court is not a third fact finding

court and cannot make any enquiry into facts. Nevertheless, it also

cannot be ignored that it was in the presence of both the parties

that the order dated 29.7.2003 had been passed and the Local

Commissioner had been appointed to ascertain who is in

possession of the suit property. Report is largely in favour of the

appellant/defendant establishing his possession in the suit

property.

16. Even ignoring the report of the Local Commissioner yet the

findings in the impugned judgment are perverse; it had illegally

and arbitrarily ignored the documents of title by the defendant. In

a judgment reported in AIR 1978 SC 1329 Jadu Gopal Chakravorty

(deceased) by LRs. vs. Pannalal Bhowmick & Ors. it has been held

that misconstruction of a document of title on which the claim of

the party is based would be an error of law which the High Court is

competent to correct in second appeal.

17. Appeal is allowed. The impugned judgment is set aside,

result is that the suit of the plaintiff Ram Phal Rathi is dismissed.

INDERMEET KAUR, J.

NOVEMBER 23, 2010 rb